Supreme Court Awards Compensation for Failing to Advise of Risks

The Supreme Court has awarded the mother of a brain damaged boy £5.25 million medical negligence compensation for failing to advise of risks after a landmark ruling.

In October 1999, Sam Montgomery was born at the Bellshill Maternity Hospital in North Lanarkshire after experiencing a medical emergency during his delivery – Sam´s shoulder had got stuck during the procedure and he suffered shoulder dystocia as he was delivered.

Although the medical team assisting with the delivery followed the appropriate guidelines for dealing with the emergency, Sam had to be resuscitated due to a delay of twelve minutes during which time his brain was starved of oxygen.

Now fifteen years of age, Sam suffers from cerebral palsy and a permanent brachial plexus injury, and requires full-time care from his mother – Nadine – who, after an investigation into the circumstances of her care at the Bellshill Maternity Hospital, claimed compensation for failing to advise of risks.

In her claim against NHS Lanarkshire, Nadine alleged that her consultant obstetrician and gynaecologist – Dr Dina McLellan – failed to advise her that there were risks associated with the natural birth of her son as she is petite in size and suffers from Type 1 diabetes.

When the claim for compensation for failing to advise of risks was heard in the Outer House of the Court of Session, the court heard that women with Type 1 diabetes are more likely to have bigger babies and that Nadine had expressed concerns about delivering the baby safely during the pregnancy but was never given the option of a Caesarean Section.

Nadine said that, if she had known that a Caesarean Section procedure was available, she would have chosen it over a natural birth, but the NHS Lanarkshire testified in court that there had not been “a high probability of a grave outcome” and that Dr McLellan was within her remit not to advise Nadine of a 9-10% risk of injury or recommend a Caesarean procedure.

The Outer House of the Court of Session dismissed Nadine´s case, as did the Inner House of the Court of Session when Nadine appealed the original decision. However, Nadine took the claim to the Supreme Court, where a panel of judges found in her favour and awarded £5.25 million compensation for failing to advise of risks.

Delivering the Supreme Court verdict, Lord Kerr and Lord Reed said “There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

Lady Hale – another of the panel of judges at the Supreme Court – commented that the testimony given by Dr McLellan that it was “not in the maternal interests for women to have Caesarean Sections” did not look like a purely medical judgement, and that it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors.”

The verdict of the Supreme Court is significant inasmuch as it changes the criteria for what should now be considered as “informed consent” and the doctor-patient relationship. From now on, patients have the right to be advised of all possible treatments – and their associated risk factors – and to decide for themselves the levels of risk they are prepared to accept.

If a patient is not informed of the full range of treatments “reasonably” available to them, and they suffer an injury or the deterioration of an existing condition when agreeing to a procedure which may not have been most suitable for them, it is likely that they will also be entitled to claim compensation for failing to advise of risks associated with alternative treatments or procedures.